There’s Something Called Due Process….I Swear….

August 28, 2014

Often times we bring up the Constitution and due process when speaking about removal defense in immigration law.  So many of those times they are simply a punch line to a joke or the set up for a punch line.  Due process is an easy concept.  It is found in the Constitution if anyone is interested they can google it and find it there.  The basic concept is that everyone is given a fair shot.  One side is not given an advantage over the other side.  In a criminal context the prosecutor is not allowed to hide evidence from the defense and the police are not allowed to plant evidence on a suspect.  Sure, it can get more complicated from there and what is fair and what is unfair are grounds for contentious debates in our courts, but the basic concept that everyone should be given a fair shot and that neither side should be given an advantage over the other are two basic concepts that one would be hard pressed to find someone to take issue with…..until you get to immigration, especially in removal defense.

There is a concept of due process in removal hearings (those hearings where an immigration judge decides if someone should be allowed to stay here in the US or they should be deported to their country) but it’s…well…it’s kind of weird.  People who are facing removal are allowed the right to counsel at their own expense.  Which means the government will not provide one for them if they cannot afford to hire their own attorney.  This right to an attorney in removal proceedings at no expense to the government is a right that is put in by statute and could presumably be taken away by statute.  This set up  leaves the impoverished and vulnerable alone and unrepresented in a complex system of laws with the consequences to them being of the utmost gravity.

Another stalwart of due process is foreign to removal proceedings and that is the concept of hear say evidence.  Hear say evidence is best described as a third party making a statement where that person is not available to be questioned on it.  Ok…that might be the crappiest definition ever given, but that’s the basic concept.  In a criminal trial a police report would never be submitted into evidence and reports by the police would never be submitted unless the police officer was there to be questioned on it.  In removal hearings uncorroborated police reports are often introduced as a fact document and many immigration judges take the information written on them as absolute truth.  If you ever want to have fun in immigration court, object to them as hearsay, inherently unreliable and violative of your client’s due process rights.  See if the judge and the government attorney can keep from laughing.  If they do you know they will be laughing at you when you leave.

This brings us to another point and that is the coziness many judges have with the government attorneys.  More often than not they used to be one of them and many make no effort to even disguise their biases toward their positions.  They will often conference about cases without the other side present, which is called ex parte communications.  This is such a frequent practice that one almost takes it as normal. The recent influx of refugees on our southern border has seen judges under orders to speed up the cases for these refugees.  In which other court system in the US would one side be able to dictate the conduct of their judges in such a manner.  Even the judges have noticed and began to speak up.

Judge Slavin from Miami is one of my favorite judges and she is quoted in the story above.  She is fair, compassionate and an actual believe in due process for those who appear before her.  She is in the minority and that is sad.

So, why is there such a blatant lack of due process you ask.  It’s simple.  Physical detention in a prison and forced removal from your wife and children is not criminal punishment.  It’s a civil process and not punishment at all.  They are not in prison or jail, they are in detention.  They are not being criminally punished they are being civilly punished?  Yea…I don’t know.  The tide may be turning here as more and more courts are recognizing more and more due process rights for immigrants in removal proceedings, but it is a drawn out fight each time.  Why such a simple concept that is the bedrock of our judicial system has to be such a hard thing to achieve is beyond me.  Perhaps someone can explain it to me.

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